Thursday, January 24, 2019

FES Bankruptcy Creating Additional Uncertainty

By Rory D. Sweeney

FirstEnergy Solutions’ bankruptcy is creating repercussions that extend beyond the question of whether the merchant generator will survive.

While speculation had been swirling for months that FES, FirstEnergy’s generation arm, would soon go under, the company’s March 31 bankruptcy filing was overshadowed by its announcement that it was shuttering nearly 4,000 MW of nuclear generation and requesting an emergency order from the Department of Energy to keep its ailing fleet running. (See FES Seeks Bankruptcy, DOE Emergency Order.)

As part of its bankruptcy filing, FES requested the authority to end its long-held “sponsorship” of the Ohio Valley Energy Corp. (OVEC) and block FERC from making any ruling on the issue. FES requires FERC approval to void its inter-company power agreement (ICPA) with OVEC.

OVEC responded by petitioning the U.S District Court for the Northern District of Ohio to withdraw the request, contending that FERC has exclusive authority over wholesale power agreements that can’t be addressed by a bankruptcy court. The court denied that argument and found that FERC and the bankruptcy court have “concurrent jurisdiction” over the companies’ ICPA.

“Thus, FES must seek approval from both FERC and the Bankruptcy Court to reject the ICPA. FERC will apply the [Federal Power Act’s] public interest standard to determine if the rejection comports with federal law,” the court said.

FERC PUCO bankruptcy PPAs

Clifty Creek Power Plant Complex | Crowezr

OVEC, headquartered in Piketon, Ohio, is still awaiting FERC’s decision on a complaint (EL18-135) it filed on March 26 in anticipation of FES’ filing.

Under the current ICPA, which runs through June 30, 2040, OVEC provides power from its two coal-fired generating plants — the 1.1-GW Kyger Creek in Cheshire, Ohio, and 1.3-GW Clifty Creek in Madison, Ind. — to its eight corporate “sponsors” that include FES. The units are already pseudo-tied into PJM, and the sponsors can sell their portions of the output into the RTO’s markets.

FERC PUCO bankruptcy PPAs

Kyger Creek Power Plant

OVEC has been granted permission to join PJM as of June 1 but will have no load after a DOE contract ends sometime before 2023. The company was created in 1952 to service a uranium enrichment plant near Piketon that ceased operations in 2001. The department ended the 2,000-MW contract in 2003; it maintains a load that can be 45 MW at its maximum but is generally less than 30 MW.

While the sponsors are not required to sell their output, they are required to pay their portion of OVEC’s costs. There is no requirement for the other sponsors to make up for any shortfalls from companies that don’t pay. FES has a 4.85% stake, equating to about $30.1 million annually, according to OVEC’s federal court complaint (5:18-mc-00034-DAP).

PUCO Concerns

Separately, the Public Utilities Commission of Ohio has opened an investigation (18-569-EL-UNC) into FES’ retail sales and its future marketing plans in light of revelations that the company is still offering consumer contracts for up to three years. PUCO gave the company until May 4 to file a detailed explanation about whether it plans and is able to continue its retail sales business.

The order came a day after FES confirmed during its initial bankruptcy hearing on April 3 that it has contracts with more than 900,000 retail customers and plans to sell them to other suppliers. A day earlier, FES had filed a notice with PUCO in its relicensing case (00-1742-EL-CRS) that the bankruptcy wouldn’t affect its retail operations. The company must seek relicensing every two years to be a retail energy supplier.